Stephen Patrick Black v. Christian Cruz

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00262-CV

STEPHEN PATRICK BLACK, APPELLANT

V.

CHRISTIAN CRUZ, APPELLEE

On Appeal from County Court
Lamb County, Texas
Trial Court No. CC-3443, Honorable James M. DeLoach, Presiding

July 8, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, Stephen Patrick Black, filed a negligence suit against Appellee,

Christian Cruz, a security officer/technician employed by Management and Training

Corporation, for inappropriately conducting a penile plethysmograph test (PPG)1 which

resulted in “false positives.” Both sides filed traditional motions for summary judgment.

1 A PPG test measures an individual’s arousal to external stimuli and is used to evaluate the

continued need for civil commitment. The data collected from the test is included in the expert’s biennial
examination and is provided to the trial court as well as other parties.
The trial court granted Cruz’s motion and denied Black’s motion. By his original and reply

brief, Black presents four issues challenging the trial court’s order as follows:

(1) Did Cruz owe him a legal duty, and if so, what type?

(2) Did Cruz breach that duty assumed by contract, and if so, how?

(3) Did Cruz’s breach of duty damage him, and if so, how?

(4) Did the trial court commit reversible error in granting Cruz’s motion
for summary judgment, when it failed to provide notice of a
submission hearing and allow him a timely opportunity to respond in
opposition pursuant to Rule 166a(c) of the Texas Rules of Civil
Procedure?

We reverse and remand.

BACKGROUND

Black has been committed in the Texas Civil Commitment Center in Lamb County,

Texas, since 2016, pursuant to the Sexually Violent Predators Act.2 The Act requires a

committed individual to receive a biennial examination. TEX. HEALTH & SAFETY CODE ANN.

§ 841.101(a). The Texas Civil Commitment Office (TCCO) contracts with an expert to

perform that examination. Id. The report from that examination is then provided to the

trial court for use in its biennial review of the committed individual’s status. 3

§§ 841.101(b), 841.102(a).

According to the PPG Assessment Manual, its purpose is to provide a

standardized protocol for the technician to administer the test. Steps 12 and 13 of the

2 TEX. HEALTH & SAFETY CODE ANN. §§ 841.001–.151.

3 A “biennial examination” and a “biennial review” are different matters with the former conducted

by an expert and the latter by the trial court.
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manual contemplate that the TCCO client is responsible for placing the gauge on himself

and, if any sensor readings do not appear normal, the technician may instruct the client

over an intercom to make necessary adjustments.

According to Black, he was scheduled for a PPG test in November 2019. He

created a consent form, allegedly to protect his civil rights, which Cruz refused to sign.

The test was rescheduled for December 2019, and Black asserts he was threatened with

punishment if he presented another consent form for Cruz to sign. Black claimed that

Cruz instead provided his own consent form for Black to sign which did not warn him that

he might have to re-calibrate the equipment himself during the PPG test.

Black maintained that during the test, Cruz asked him several times to re-calibrate

certain electronic equipment which he was not trained to do, and which resulted in

malfunctioning and “false positives.” He also alleged that Cruz failed or refused to inform

the person who would be interpreting the data from the test results that the equipment

malfunctioned during the re-calibrations. He sued Cruz in Justice Court alleging a duty

to follow proper procedures was breached and resulted in dissemination of “error ridden

raw data to numerous third parties,” causing him injury. The case was resolved against

him on Cruz’s Motion for Summary Disposition.

Black appealed to County Court alleging negligence by Cruz in the administration

of the PPG test and sought monetary damages. He filed his motion for summary

judgment on January 4, 2023. Cruz filed his competing motion on April 7, 2023, and six

days later, on April 13, 2023, without notice of submission to the parties as required by

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Rule 166a(c) of the Texas Rules of Civil Procedure, the trial court signed an order in favor

of Crus and dismissed Black’s claims with prejudice.4

APPLICABLE LAW

Pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, a summary

judgment motion and supporting affidavits shall be filed and served at least twenty-one

days before the time specified for hearing. TEX. R. CIV. P. 166a(c). Except on leave of

court, an adverse party has seven days prior to the day of the hearing to file and serve

opposing affidavits or a written response. Id. Notice of submission is mandatory and

essential and because summary judgment is a harsh remedy, the notice provisions of

Rule 166a(c) are strictly construed. Town Park Ctr., LLC v. City of Sealy, 639 S.W.3d

170, 183 (Tex. App.—Houston [1st Dist.] 2021, no pet.).

SUMMARY JUDGMENT STANDARD OF REVIEW

We review a grant of summary judgment de novo. Trial v. Dragon, 593 S.W.3d

313, 316–17 (Tex. 2019). When both parties move for summary judgment, each party

bears the burden of establishing that it is entitled to judgment as a matter of law. City of

Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 259 (Tex. 2018); Garland v.

Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one

motion for summary judgment and denies the other the reviewing court considers the

summary judgment evidence presented by both sides, determines all questions

4 Black was not timely notified of the judgment entered against him. He successfully appealed the
trial court’s denial of his motion under Rule 306a of the Texas Rules of Civil Procedure to have the deadline
in which to file his notice of appeal reset. See Black v. Cruz, No. 07-23-00262-CV, 2024 Tex. App. LEXIS
1160, at *3 (Tex. App.—Amarillo Feb. 6, 2024, order).
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presented, and if the reviewing court determines that the trial court erred, renders the

judgment the trial court should have rendered. Seabright Ins. Co. v. Lopez, 465 S.W.3d

637, 641–42 (Tex. 2015). Neither party can prevail because of the failure of the other to

discharge its burden. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d

85, 87 (1954).

ANALYSIS

We begin with issue four as it is dispositive of this appeal. Black asserts the trial

court committed reversible error by failing to provide him with notice of submission of the

motions for summary judgment.5 We agree.

Notice is “[a]n elementary and fundamental requirement of due process.” B. Gregg

Price, P.C. v. Series 1 – Virage Master LP, 661 S.W.3d 419, 422 (Tex. 2023) (quoting

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865

(1950)). Such notice must be “reasonably calculated under all the circumstances to

apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.” Mullane, 339 U.S. at 314.

Our rules of civil procedure prescribe guidelines to ensure the parties receive

notice and a meaningful opportunity to be heard. B. Gregg Price, P.C., 661 S.W.3d at

423. A motion for summary judgment must be served on the opposing party at least

twenty-one days before the time specified for a hearing. TEX R. CIV. P. 166a(c). Notice

5 Black recited in his motion for summary judgment that he had no objection to the motion being

decided without a hearing; however, that is distinct from notice of submission of the motion which is
mandatory under Rule 166a(c). See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.
1998) (declaring that an oral hearing on a motion for summary judgment is not mandatory but notice of
hearing or submission is required).
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of a summary judgment hearing must inform the nonmovant of the exact date of hearing

or submission. Martin, 989 S.W.2d at 359. A trial court errs when it grants summary

judgment without notice of the hearing to the nonmovant. B. Gregg Price, P.C., 661

S.W.3d at 423.

In the underlying case, the trial court signed an order granting Cruz’s motion for

summary judgment seven days after it was filed without notice of submission to the

parties. Cruz urges that the lack of notice of submission to Black did not result in any

prejudice. He defends his position by invoking the de novo standard of review and points

out that Black submitted his response and objections to the competing motion.6 Thus, as

part of the record, Cruz contends Black’s responsive evidence is subject to de novo

consideration, and Black has not been prejudiced.

Cruz misses the point. De novo review in an appeal from a summary judgment

conceives that the trial court complied with procedural due process. Without notice of the

exact date of submission, the trial court errs in granting summary judgment. Martin, 989

S.W.2d at 359. Additionally, Black had no opportunity to timely file a motion for new trial

per Rule 329b(a) of the Texas Rules of Civil Procedure to complain of the lack of notice

as he did not receive notice of the trial court’s order until June 15, 2023, more than thirty

days after the order was signed. See Black, 2024 Tex. App. LEXIS 1160 at *3 (resetting

appellate timetable after appeal of denial of motion under Rule 306(a) of the Texas Rules

of Civil Procedure). Cf. B. Gregg Price, P.C., 661 S.W.3d at 421 (holding that trial court’s

6 Black’s Plaintiff’s Sworn Motion-Reply Opposing Defendant’s Motion for Summary Judgment
presents a quandary. He acknowledges it was filed in response to Cruz’s motion for summary judgment
filed on April 7, 2023; however, it is stamped throughout as being filed on January 4, 2023, the same date
that Black filed his motion for summary judgment and months before Cruz actually filed his motion.
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unilateral action in moving a canceled hearing to its submission docket without notice and

the subsequent denial of a motion for new trial was a denial of due process). In the

underlying case, the error in failing to give notice of submission was compounded by the

failure to inform Black that an order had been entered on April 13, 2023. Id.

We conclude Black’s due process rights were violated when the trial court entered

the order in favor of Cruz without timely notice of submission. Thus, we do not reach a

de novo review of the trial court’s order. Issue four is sustained. Issues one, two, and

three are pretermitted.

CONCLUSION

The trial court’s summary judgment is reversed, and the cause is remanded for

further proceedings in compliance with Rule 166a(c) of the Texas Rules of Civil

Procedure.7

Alex Yarbrough
Justice

7 Generally, this Court renders the judgment the trial court should have rendered when error is

presented in a review of competing motions for summary judgment. Lopez, 465 S.W.3d at 641–42. Here,
however, because Black was denied due process, we do not reach the merits of either motion.
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